39
PROCTOR | October 2015
Andrew Ross is a senior associate at Sparke Helmore
Lawyers. The assistance of solicitor Stephan McMurray in
the preparation of this article is gratefully acknowledged.
A recent Fair Work Commission decision shows that the commission
is prepared to make orders preventing bullying that are not necessarily
specific to circumstance or conduct. Report by Andrew Ross.
This case highlighted the employer’s failure
to adequately respond to the complaint
of bullying or adhere to its own policies
dealing with this. Conversely, the case also
highlighted the employer’s responsibility
to have policies and initiatives in place to
ensure a proactive response to manage
conduct and conflict in the workplace.
In finding Sussan negligent, Justice
Henry held that the reasonable person
in the employer’s position ought to have
reasonably foreseen that the inadequate
response to the complaint would intensify
the employee’s adverse emotional state.
Implications and lessons
for employers
It is important to remind your employer or
your clients that workplace bullying poses
a significant risk to the health and safety
of employees. Because complaints can be
made and heard in several jurisdictions, a
failure to proactively prevent and effectively
deal with bullying can have considerable
financial, personal and organisation
reputation implications.
When advising clients about measures to
mitigate the risk presented by workplace
bullying, lawyers and law firms should
ensure that employers:
• provide effective training for managers/
supervisors and employees aimed at
proactively identifying and preventing
bullying
• develop and implement fair, robust,
transparent and measurable bullying
policies, grievance processes and
procedures, and ensure systematic
compliance across the organisation
or business
• take allegations of bullying seriously and
initiate internal or external investigations,
depending on the seriousness of the
allegation
• understand that when bullying has been
found to exist, merely separating those
involved may not be enough to prevent
further bullying if there is still a possibility
of future work interactions between them
• understand that a person can be bullied
even if they have also engaged in
unreasonable conduct
• consider reducing the potential damage
to their business and reputation by
making appropriate concessions in private
conferences before the FWC, whenever
possible, as this is more likely to provide
the commission with the basis to make
de-identification orders to protect the
identity of the parties.
Notes
1 Fair Work Act 2009 (Cth) section 789FC.
2 Ibid, section 340.
3 Ibid, section 394.
4 Work Health and Safety Act 2011(Qld) sections
31 to 33.
5 Fair Work Act 2009 (Cth) section 351.
6 [2015] FWC 5272.
7 Fair Work Act 2009 (Cth) Part 6-4B .
8 [2014] QSC 64.
Workplace law
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